House to vote on Obama's first veto

By Ben Pershing
On Dec. 30, President Obama quietly issued his first veto. On Wednesday, the House will vote on whether to override that veto. Except Obama didn't really oppose the bill he vetoed, and the House doesn't really want to override it.

Confused? Welcome to the murky world of the separation of powers, where the legislative and executive branches are still squabbling, more than 200 years after the adoption of the Constitution, over how exactly the president is empowered to reject a bill passed by Congress. In this case, the issue is whether the president can issue a "pocket veto" when Congress is out of session by simply refusing to sign a bill.

The measure in question is a short-term spending bill or "continuing resolution" that passed the House Dec. 16 and the Senate Dec. 19, and was written to keep the government funded through Dec. 23, just in case it was necessary. But then Obama signed the Defense spending measure, and so there was no need for the CR to become law.

What happens to a bill if it is passed by both chambers but the president does nothing?

If Congress is in session, everyone agrees, the bill becomes law after 10 days. If Congress is in "adjournment," then the bill is pocket vetoed. The complicating factor in this case is that neither the House or Senate really "adjourned" during the holiday break, though both did go into "recess." As CQ Today (subscription required) explains:

While the Constitution allows the president to kill a bill by not signing it and not returning it to Capitol Hill if Congress has adjourned, constitutional scholars are divided on whether such a pocket veto is valid when the House and Senate are in recess or during the period between the two sessions of a Congress if the chambers have made arrangements to receive official messages from the White House.

Because of that ambiguity, Obama decided to cover all his bases, as past presidents have in similar circumstances. In the "Memorandum of Disapproval" he sent to Congress on Dec. 30, the president said "I am withholding my approval from the bill.... To leave no doubt that the bill is being vetoed as unnecessary legislation, in addition to withholding my signature, I am also returning H.J.Res. 64 to the Clerk of the House of Representatives, along with this Memorandum of Disapproval."

The Constitution "simply doesn't give the president a multiple-choice option" on how to veto a bill, said Robert Spitzer, chairman of the political science department at State University of New York at Cortland and author of a noted book on the presidential veto. The method used by Mr. Obama, Mr. Spitzer noted, has been a source of tension between the White House and Congress dating back to the Ford administration.

Since Congress doesn't agree that Obama had the right to simply "withhold his approval" in this case, the House will vote on overriding the traditional veto to signal that it doesn't recognize the pocket veto. But leaders scheduled the vote for symbolic reasons -- they don't actually want their members to override the veto.

"We will vote to sustain the veto because the CR is not necessary and is redundant," says a House Democratic aide. Assuming at least 146 members vote to sustain (two-thirds being necessary to override a veto), the issue will be settled and the Senate won't have to bother with it when that chamber returns next week.

What I'd like to know is how much this "non-vote" for the sake of pro-forma is going to cost taxpayers in time spent by their Congressional Representatives as well as the cost of the logistical peripherals (salaries for aides, cost of utilities used during this vote, etc.) that could have been spent on more productive, non-redundant legislation decisions. YOU'RE WASTING OUR MONEY, FOLKS!

Your story misses one key point: according to the Constitution, use of the pocket veto requires two conditions: 1) that Congress is adjourned, and 2) that bill return is not possible (suggesting that bill return is possible when Congress is adjourned). In fact, bill return during adjournment is utterly routine, and has occurred thousands of times over many decades. (The procedure passed constitutional muster in a 1938 Supreme Court case.) Obama's protective return veto was, at the least, unnecessary, and at the most, unconstitutional--the fact that he was able to return the bill meant that all that was needed was the regular or return veto.